A reform proposal floated in a 2010 Cato Institute policy analysis is now becoming a pilot project in one Texas county. More: Greenfield.
Posts Tagged ‘Cato Institute’
“Rails to trails” maneuver was a taking
So will the federal government pay just compensation? The Supreme Court may decide that question in the pending case of Brandt v. U.S., in which the Cato Institute has filed an amicus brief. [Ilya Shapiro, Cato]
The New Age of Litigation Finance
On Thursday I was a panelist at the Federalist Society National Lawyers’ Conference discussing the rapid rise of litigation funding — specifically, well-capitalized firms that advance money to plaintiffs in commercial high-stakes litigation, often in exchange for a share in the proceeds. (A separate wing of the litigation finance business, which was not the panel’s primary focus, advances smallish sums to individual injury plaintiffs at high interest rates in a sort of analogue of payday lending.)
My opening remarks speculate about the future emergence of divorce trolls — excuse me, “marital rights assertion entities” — set up to buy out an ex-spouse’s stake in ongoing matrimonial strife and play it for maximum extraction value. While no one has yet rolled out that kind of business model, note that outside financiers have indeed begun to fund divorce litigation.
More seriously, I went on to argue that the rise of patent trolls and mass tort operations prefigures problems we are likely to see emerge from litigation finance, from the encouragement given to low-value claims to a settlement process skewed by the interests of the funders rather than the original disputants, and suggest that the age-old rules against champerty, maintenance and barratry might owe something to an appreciation of such dangers. A link to the video is here.
More: Check out Roger Pilon’s post on what else Cato people were up to at the Mayflower last week.
Constitutional and Supreme Court roundup
- Now available: 2012-13 edition of the celebrated Cato Supreme Court Review. And full video of Cato’s Constitution Day, at which many of the CSCR authors spoke, is up here;
- Is a hearing necessary if prosecutors freeze assets needed to pay defense lawyers? Court hears argument in forfeiture, money laundering case Kaley v. U.S. [ABA Journal, Jacob Sullum, Scott Greenfield, Harvey Silverglate]
- Court grants certiorari in greenhouse-gas case Utility Air Regulatory Group v. EPA [Jonathan Adler, Richard Faulk]
- Ilya Somin briefly reviews three new books on constitutional law: John McGinnis and Michael Rappaport on originalism, Randall Kennedy on affirmative action, and Clark Neily on judicial engagement [Volokh]
- General jurisdiction: “Justices Wrestle With Whether California Law Reaches A Mercedes Plant In Argentina” [Daniel Fisher]
- Home Building & Loan Ass’n v. Blaisdell (1934) eviscerated the Contracts Clause, right? Well, it’s complicated [Gerard Magliocca]
- Much-noted interview with Justice Scalia [New York mag] Is there a conservative jurisprudence bubble? [Daniel McCarthy] New opera “Scalia/Ginsburg” [Washington Post]
- “The Fiduciary Foundations of Federal Equal Protection” [Gary Lawson, Guy Seidman, & Robert Natelson, SSRN]
On an attempted resuscitation of Karl Polanyi
Sociological historian Karl Polanyi, who argued in The Great Transformation that the market economy was a novel and alien mode of human interaction imposed by strong central government and due for obsolescence, has long been a spent force even among most thinkers on the left. So it might have counted as mildly surprising that a writer at the left-leaning think tank Demos picks Polanyi as a champion to send into battle against libertarians (for what it’s worth, Demos now has a whole project, the “Gordon Gamm Initiative,” aimed at finding fault with libertarians; more here from Trevor Burrus). Assigning my Cato colleague Alex Nowrasteh to refute the Polanyi thesis, as Cato’s Libertarianism.org does here, is like sending in a skilled shipbreaker with power tools to remove the stuffing from a scarecrow.
Update: In response to Matt Bruenig, Alex bounces the rubble.
“If You Knew What I Know About Email, You Might Not Use It”
The head of Lavabit — one of two small encrypted email providers that just closed down pre-emptively rather than fight federal government demands — “says he’s been told it’s illegal even to discuss what demand the feds made of him.” [Kashmir Hill/Forbes, more, TechCrunch, Guardian] “Wyden’s constant references to location tracking in this context would be nothing short of bizarre unless he had reason to believe that the governments assurances on this score are misleading, and that there either is or has been some program involving bulk collection of phone records.” [Julian Sanchez, Cato] “The Public-Private Surveillance Partnership” [Bruce Schneier, Bloomberg] “A Guide to What We Now Know About the NSA’s Dragnet Searches of Your Communications” [Brett Max Kaufman, ACLU] The Cato Institute has filed a brief urging the Supreme Court to accept a case challenging the legality of current programs of mass surveillance, in a case filed by the Electronic Privacy Information Center.
More: No right to noisy exit? “Feds Threaten To Arrest Lavabit Founder For Shutting Down His Service” [TechDirt] And now (Sunday): with no charges and no arrest, authorities at Heathrow held and interrogated the partner of journalist Glenn Greenwald (who has exposed the NSA program) for nine hours, exactly as long as they could under Britain’s anti-terror law without pressing a charge. They also confiscated his phone, laptop, USB sticks and other electronic gear. [Guardian, Greenwald, NY Times, Lowering the Bar, Peter Maass/NYT Magazine (filmmaker and Greenwald collaborator Laura Poitras regularly detained and interrogated at airports), Joel Mathis/Philly Mag] But see The Spectator (Miranda “carrying encrypted files from Snowden to Greenwald”).
Sen. Durbin’s “Stand Your Ground” intimidation
Sen. Dick Durbin (D-Ill.), a close ally of labor union and trial lawyer interests on Capitol Hill, is sending out hundreds of letters to groups linked to ALEC, the free-market group of state legislators that has occasionally involved itself in other issue areas like criminal and self-defense law, promising to shame those supporters at a public hearing for the notional link to the Trayvon Martin affair. (ALEC backed the passage of some state “stand-your-ground” laws, which as we have grown weary of repeating, did not form the basis for George Zimmerman’s successful claim of self-defense; a new Quinnipiac poll finds that American voters back “Stand Your Ground” laws by a 53-40 margin, so that campaign against these laws has evidently flopped badly)
Mostly these letters were designed to intimidate businesses that might support ALEC, but Durbin also sent one of the browbeating letters to the Cato Institute, which might have been a mistake. As related by colleague Ilya Shapiro:
Earlier this week, we received a letter from Durbin asking two questions (you’ll have to pardon the awkward grammar; this went out to hundreds of groups, so Durbin’s staff apparently had no time for proofing):
Has Cato Institute served as a member of ALEC or provided any funding to ALEC in 2013?
Does Cato Institute support the “stand your ground” legislation that was adopted as a national model and promoted by ALEC?
And, by the way, Durbin wants recipients of his polite inquiry to know, “I plan to convene a hearing of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights to examine ‘stand your ground’ laws, and I intend to include the responses to my letters in the hearing record. Therefore, please know that your response will be publicly available.”
Well, I’m proud to say that Cato isn’t going along with this charade. Our president John Allison has responded to Durbin with a letter that I’ll quote in its entirety:
Dear Senator Durbin:
Your letter of August 6, 2013 is an obvious effort to intimidate those organizations and individuals who may have been involved in any way with the American Legislative Exchange Council (ALEC).
While Cato is not intimidated because we are a think tank—whose express mission is to speak publicly to influence the climate of ideas—from my experience as a private-sector CEO, I know that business leaders will now hesitate to exercise their constitutional rights for fear of regulatory retribution.
Your letter thus represents a blatant violation of our First Amendment rights to freedom of speech and to petition the government for a redress of grievances. It is a continuation of the trend of the current administration and congressional leaders, such as yourself, to menace those who do not share your political beliefs—as evidenced by the multiple IRS abuses that have recently been exposed.
Your actions are a subtle but powerful form of government coercion.
We would be glad to provide a Cato scholar to testify at your hearing to discuss the unconstitutional abuse of power that your letter symbolizes.
Sincerely,
John Allison
The Wall Street Journal is on the issue today, and so is the Chicago Tribune, reproaching hometown Sen. Durbin for his propensity to “use the power of his high federal office as a cudgel against his enemies.” Incidentally, while Cato takes no official position so far as I know on “Stand Your Ground” laws, I have been active in discussing them: in the Orlando Sentinel, New York Times, Daily Caller, Bloomberg TV, Cato podcast and other places, and in many places here, including discussions of the campaign against ALEC here, here, here, and here (Paul Krugman at his most careless). Do you think I could ask the Senator to shame me by name at the hearing?
P.S. One of the rare occasions when my opinions diverge from Ira Stoll’s.
Mark your calendar: Cato’s Constitution Day in D.C. Sept. 17
Mark your calendar to be in Washington, D.C. Sept. 17 for the Cato Institute’s annual Constitution Day. Among the highlights: introductory talks by Cato’s Roger Pilon and Ilya Shapiro, a series of topical panels including many scholars, writers and lawyers oft linked in this space, a preview of next year’s term with star Court-watchers Tom Goldstein (SCOTUSBlog), Marcia Coyle (National Law Journal), and Howard Bashman (How Appealing), and a wrap-up address by Judge David Sentelle on freedom of the press. Full program and registration here.
Cato’s phenomenal year at the Supreme Court
This year, the Cato Institute went 15-3 before the Supreme Court, counting argued and decided cases (and not counting Perry, which was resolved on standing rather than merits).
That’s pretty phenomenal. By way of comparison, in this listing of greatest American sports teams, the legendary 1961 New York Yankees were 109-53; the Chicago Bulls of 1995-96 were 72-10; and the 2001-02 Detroit Red Wings were 51-12. Sandy Koufax’s 1963 season had his best win-loss record at 25-5.
And that’s the kind of year we’ve had in the Cato legal department.
P.S. And here’s Ilya Shapiro with a more detailed post including a list of cases. He notes that of the Court’s closing trio of very high-profile decisions, Cato was “the only organization to file briefs supporting the challengers on each one (Fisher v. UT-Austin, Shelby County v. Holder, Windsor v. United States & Perry v. Hollingsworth).”
May 7 roundup
- In quiet retreat from STOCK Act, Congress dispenses with trading transparency for its staff [Prof. Bainbridge]
- Deep-pocket quest: hotel named as additional defendant in Florida A&M hazing death [Orlando Sentinel, earlier]
- “Keynes didn’t expect to have kids so he didn’t care about the future” wheeze long predates Niall Ferguson [Kenneth Silber; my new post at IGF, where I’ve also been posting lately on the topic of adoption]
- Ten and five (respectively) reasons for a plaintiff’s lawyer to turn down a personal injury case [Eric Turkewitz, Max Kennerly]
- Setback for man seeking to trademark “Eat More Kale” [AP, earlier]
- Gawker is now on the UK “Warning: This bag of nuts may contain nuts” case [earlier]
- Overlawyered’s Twitter feed just passed the 7,000-follower mark, while our Facebook page, which recently stood at 1,000 likes, has now surged to nearly 2,500. Thanks for following and liking, and if you’d like to engage with other parts of Cato on social media, check out this nifty guide by Zach Graves.